DAUM_INTELLIGENT DEFENSE 7/29/2011 10:44 AM INTELLIGENT DEFENSE: A CALL FOR FEDERAL REGULATION OF MIXED MARTIAL ARTS Michael R. Daum* INTRODUCTION ......................................................................... 248 I. CURRENT STATE OF MMA REGULATION .............................. 251 A. The State System ..................................................... 252 1. The Unified Rules Regimes ................................ 254 2. The Unclear Regimes .......................................... 256 3. The Lawless Regimes .......................................... 257 B. Problems with the Current Regulatory Scheme ..... 259 II. CONGRESSIONAL AUTHORITY TO REGULATE MMA ............. 265 A. MMA as Interstate Commerce ................................ 266 B. MMA as Indian Commerce ...................................... 268 C. Federalism Concerns in Federalizing MMA ........... 269 III. PROPOSAL FOR FEDERAL REGULATIONS ............................ 273 A. The Undesirability of a Full-Fledged Federal Regulatory Body ...................................................... 273 B. Cooperative Federalism Between Legislation and Local Athletic Commissions .................................... 276 1. Addressing the Problem of Jurisdictions Without Formal MMA Regulation ..................... 277 2. Federal MMA Fighter License and Registry ..... 279 3. Federal MMA Health and Safety Regulations .. 281 CONCLUSION ............................................................................ 286 * J.D., 2011, Michigan State University School of Law. Beginning in the fall of 2011, the author will be working as an employee benefits associate at Blitman & King, LLP in Syracuse, New York. The author would like to thank his family, Dr. Lisa Jadwin, Dr. Bill Waddell, Mary A. Bedikian, Gerard E. Martin, James R. LaVaute, and Jonathan M. Cerrito for giving him the ability and motivation to write this Article. He would also like to thank Randy Couture and Forrest Griffin for inspiring his interest in MMA and this topic. The author has been an avid fan of mixed martial arts since the first time he saw a clip of Rich ―G-Man‖ Goins. 247 DAUM_INTELLIGENT DEFENSE 7/29/2011 10:44 AM 248 Seton Hall Journal of Sports and Entertainment Law [Vol. 21.2 INTRODUCTION In early 2009, fight promoter Monte Cox sought to bring the worlds of boxing and mixed martial arts (MMA) together by promoting a boxing match in New Jersey between a representative from each sport.1 Olympic gold medalist and World Boxing Organization (WBO) Heavyweight Champion Ray Mercer would represent boxing, while former Ultimate Fighting Championship (UFC) Heavyweight Champion Tim Sylvia would represent MMA.2 Although both had impressive credentials in their respective forms of combat,3 Mercer had significantly more experience in the boxing ring, as he had amassed a 36-7-1 record over his career, while Sylvia never competed in a professional boxing bout.4 The New Jersey State Athletic Control Board (NJACB), which would have been responsible for overseeing the fight, 1. Tom Hamlin, Sylvia‟s Boxing Debut Nixed, SI.COM(Mar. 25, 2009, 12:18 PM), http://sportsillustrated.cnn.com/2009/mma/03/25/sylvia-mercer-bout-off/index.html. This was not the first time a fight was set up between a boxer and an MMA fighter as, in the very first UFC event, jiu jitsu practitioner Royce Gracie fought boxer Art Jimmerson; the fight did not resemble MMA today, as few of the rules were in place and Jimmerson inexplicably wore only one boxing glove. See UFC CLASSICS 1 (Lions Gate Entertainment 2006) (on file with author). It was, however, rare for two fighters with past championships in their respective sports to be matched up like this, as evident by the fact that nowhere in American mainstream MMA history prior to the Mercer-Sylvia bout could a similar example of two former champions fighting be found. In August 2010, the UFC featured an MMA bout between former Heavyweight boxing champion James Toney (who had no previous MMA experience) and former UFC Heavyweight Champion Randy Couture, billing it in advertisements as ―MMA vs. Boxing.‖ John Morgan, White: “We Won‟t Be Doing any More Boxing” After Toney‟s UFC 118 Loss, MMAJUNKIE.COM (Aug. 29, 2010, 5:10 AM), http://mmajunkie.com/ news/20469/dana-white-we-wont-be-doing-any-more-boxing-after-james-toneys-ufc-118- loss.mma. The bout was similarly uncompetitive, with Couture beating Toney via choke in around three minutes. Id. There are no public reports stating that the UFC faced problems with the athletic commission in getting the bout sanctioned despite the extreme difference in MMA experience. 2. John Morgan, Tim Sylvia Set to Box Ray Mercer, MMAJUNKIE.COM (Feb. 25, 2009, 6:55 PM), http://mmajunkie.com/news/14104/tim-sylvia-set-to-box-ray-mercer- affliction-bout-possible.mma. Although each would technically ―represent‖ his respective sport in the matchup, the fight was not associated with the UFC or the WBO, but rather run by Cox, an independent promoter working with the organization Adrenaline. Id. 3. Id. (noting Mercer‘s boxing record as having thirty-six wins as to only seven losses, and pointing out that he won an Olympic gold medal); Josh Gross, Testing the Best at Affliction, SI.COM (July 18, 2008, 11:54 AM), http://sportsillustrated.cnn.com/ 2008/writers/josh_gross/07/18/fedor.emelianenko.affliction/ (describing Sylvia as a ―former two-time UFC titleholder‖). 4. Hamlin, supra note 1. DAUM_INTELLIGENT DEFENSE.DOC 7/29/2011 10:44 AM 2011] Intelligent Defense: A Call for Federal Regulation 249 vetoed the bout by refusing to sanction it within the state.5 Presumably, the NJACB acted under the authority of the New Jersey Administrative Code, which allows the NJACB to ―disapprove any [boxing] match on the ground that it is not in the best interest of boxing or of the health of either of the combatants.‖6 The Commissioner refused to comment publicly on why he vetoed the bout,7 but it is possible that he was concerned about Sylvia‘s boxing inexperience and the fact that Mercer was a former world champion and gold medalist.8 Undeterred, Cox rescheduled the fight to take place in Birmingham, Alabama.9 At the time, Alabama did not have any state commission in place to oversee, and potentially put a stop to, the fight.10 Two days before the fight was set to take place, however, the Association of Boxing Commissions (ABC) notified Cox that the match would directly violate federal law, and possibly subject the participants to criminal penalties.11 The ABC was referencing the Muhammad Ali Boxing Reform Act (MABRA), amending the Professional Boxing Safety Act (PBSA), which provides that, if no state boxing commission is available to supervise a match, it may not be held unless another state‘s boxing commission or an association of boxing 5. Id. 6. N.J. ADMIN. CODE § 13:46-19.2 (2010). 7. See Hamlin, supra note 1. Also contributing to the Commissioner‘s decision not to sanction the bout may have been the fact that the appearance of having a fight between two competitors with a wide disparity in experience was not in the best interest of boxing. See § 13:46-19.2 (granting the Commissioner power to also disapprove a bout on the ground it is not in the best interest of boxing). 8. See Morgan, supra note 2 (noting that Sylvia had competed in twenty-nine prior professional MMA bouts before the Mercer fight); Ray ―Merciless‖ Mercer Statistics, SHERDOG, http://www.sherdog.com/fighter/Ray-Mercer-22389 (last visited Apr. 25, 2011) (listing Mercer‘s fight against Sylvia as his only professional MMA bout). 9. Adrenaline 3, Tim Sylvia-Ray Mercer Moved to June 13, MMAFIGHTING.COM (Mar. 30, 2009, 2:49 PM), http://mmafighting.com/news/2009/03/30/adrenaline-3-tim- sylvia-ray-mercer-moved-june-13. 10. ABC Balks at Mercer-Sylvia!, FIGHTNEWS.COM (June 11, 2009), http://www.fightnews.com/Boxing/abc-balks-at-mercer-silva-13688. The Governor of Alabama approved legislation to create a boxing commission on May 21, 2009, yet the commission was not in place before the June 13 event. See 2009 Ala. Legis. Serv. 622 (West) (creating Alabama Boxing Commission); Dana Beyerle, Most State Boxing Commission Members Appointed, GADSDENTIMES.COM (July 20, 2009, 9:13 PM), http://www.gadsdentimes.com/article/20090720/news/907209983 (noting that the Alabama Boxing Commissioners were in the process of being appointed in late July 2009). 11. See ABC Balks at Mercer-Sylvia!, supra note 10. DAUM_INTELLIGENT DEFENSE 7/29/2011 10:44 AM 250 Seton Hall Journal of Sports and Entertainment Law [Vol. 21.2 commissions supervises it.12 Compliance was not much of an option for Cox because it is highly unlikely that another boxing commission would have approved the fight after NJACB expressly refused to sanction it.13 After state and federal boxing regulations worked together to successfully prevent the potentially unsafe boxing match, Cox turned to MMA. With neither Alabama MMA regulations nor a federal safety net like the one provided for in boxing, the fight was able to take place.14 Much as the NJACB likely feared when it rejected the fight, the result turned out to be lopsided, and endangered both Sylvia‘s health and MMA‘s reputation.15 Mercer knocked the former UFC Champion unconscious after a mere nine seconds of stand-up fighting, 12. 15 U.S.C. § 6303 (2006). Under the same section, the match must also be run in accordance with the most recent version of the ABC‘s recommended regulatory guidelines. § 6303(a). 13. Although there is no definitive proof that no other commission would sanction the boxing match in Alabama, it is a safe assumption considering two things: the fact that Cox did not go this route, and the fact that athletic commissions frequently work together to prevent fighters and promoters from taking advantage of the system. An example of this is the fact that athletic commissions generally honor suspensions of fighters laid down by other commissions. See Mike Chiappetta, Referee Shoved by Keith Jardine Reacts to Fighter‟s Actions, Suspension, MMA FIGHTING.COM (Sept.